Oritz v. Adams

Filing 25

ORDER DENYING RELIEF FROM JUDGMENT (Illston, Susan) (Filed on 4/15/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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FRANCISCO ORTIZ,

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No. C 08-4834 SI (pr)

Petitioner,

ORDER DENYING RELIEF FROM
JUDGMENT

v.
D. G. ADAMS, warden,

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Respondent.
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On June 24, 2010, the court denied the petition for writ of habeas corpus and entered

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judgment in this action. More than fourteen months later, on September 6, 2011, petitioner filed

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a "declaration in support of his request for relief under mistake, inadvertence and/or excusable

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neglect. (Fed. Rules Civ. P., Rule 60(b).)" (Docket # 20.) At the same time, he filed an 80-page

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traverse. (Docket # 21.) The declaration is construed to be a Rule 60(b) motion and is

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DENIED.1

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The court may relieve a party "from a final judgment, order, or proceeding for the

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following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; . . . (6) any other

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reason that justifies relief." Fed. R. Civ. P. 60(b). "A motion under Rule 60(b) must be made

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within a reasonable time–and for reasons (1), (2), and (3) no more than a year after the entry of

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the judgment or order or the date of the proceeding." Fed. R. Civ. P. 60(c)(1). Here, relief is

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not available under Rule 60(b)(1) because petitioner's Rule 60(b) motion was filed more than

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a year after judgment was entered. The only possibility of relief is under Rule 60(b)(6).

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When the document was filed, it was identified as a declaration, and therefore was not flagged
as being a motion in need of a decision. The court noticed that it needed a decision only recently, when
attempting to determine why petitioner filed a notice of change of address in this long-closed case.

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Rule 60(b)(6) "has been used sparingly as an equitable remedy to prevent manifest

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injustice and is to be utilized only where extraordinary circumstances prevented a party from

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taking timely action to prevent or correct an erroneous judgment.” United States v. Washington,

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394 F.3d 1152, 1157 (9th Cir. 2005) (internal quotations and citation omitted). Thus, to reopen

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a case under Rule 60(b)(6), a party must establish “both injury and circumstances beyond his

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control that prevented him from proceeding . . . in a proper fashion.” Id. (internal quotations

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omitted).

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Petitioner's extreme delay in presenting his Rule 60(b) motion, as well as the reasons he

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offered for his delay convince the court that the motion should be denied both because it was not

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filed within a "reasonable time," Fed. R. Civ. P. 60(c)(1), and because he failed to show

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extraordinary circumstances justifying relief from the judgment. The Rule 60 motion did not

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identify any error in the order of dismissal, but simply was an attempt to file an extremely tardy

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traverse. The legal argument section of the traverse appears largely to have been cut-and-pasted

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from earlier state appellate court briefs. It was not reasonable to take 25+ months to prepare the

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traverse.2

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Petitioner offered several reasons for his delay, but they do not individually or

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collectively support relief from the judgment. First, petitioner declared that he "speaks and

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understands very little English," Docket # 20, p. 2; however, his several handwritten letters to

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the court (Docket # 4, # 15, and # 17) show he has some command of the English language. His

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language difficulties do not justify relief from the judgment. Second, he declared that he was

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housed in the very restrictive environment of an ad-seg unit from May 2008 through January

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2009, Docket # 20, p. 2, but that time period was before the court even set the briefing schedule

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in the March 2, 2009 order to show cause. Third, petitioner suggested that the attorney he found

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to help him prepare a traverse waited many months until April 3, 2010 to tell him that she had

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a conflict and could not assist him, Docket # 20, p. 2, but petitioner's date was off by six months:

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Respondent filed his answer on July 2, 2009; the court denied the petition on June 24, 2010,
after waiting more than eleven months for a traverse; petitioner filed his traverse more than fourteen
months later, on September 6, 2011.
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that attorney informed him in October 2009 that she had a conflict, see Docket # 14, and he

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thereafter requested and received an extension of time to file the traverse due to her departure

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from the case. Petitioner knew since early October 2009 that he had to prepare the traverse

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himself, and did not do so before the petition was denied more than eight months later in June

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2010. Fourth, petitioner declared that he was transferred to a new prison on March 10, 2010, and

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had to once again look for an inmate to help him with his traverse, Docket # 20, p. 3; however,

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by that time, he had already had many months to prepare his traverse and had already missed the

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final traverse deadline of December 18, 2009. Relief is not warranted under Rule 60(b)(6) for

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the inexcusably late traverse and motion for relief from judgment. The motion for relief from

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judgment is DENIED. (Docket # 20.)

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A certificate of appealability will not issue. See 28 U.S.C. § 2253(c). This is not a case

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in which "reasonable jurists would find the district court’s assessment of the constitutional

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claims debatable or wrong” in the order denying the petition, or one in which "jurists of reason

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would find it debatable whether the district court was correct in its procedural [rulings]" in this

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order. Slack v. McDaniel, 529 U.S. 473, 484 (2000). The denial of the certificate of

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appealability is without prejudice to petitioner seeking a certificate from the United States Court

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of Appeals for the Ninth Circuit.

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IT IS SO ORDERED.
DATED: April 15, 2013
SUSAN ILLSTON
United States District Judge

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